Robert Mueller’s Legal Masterpiece

The special counsel has spun a web of investigations that draw closer to Trump every day.

December 17, 2018

It’s been 18 months since Robert Mueller took over the Russia investigation, and still nobody really knows what he’ll do next. The Daily Beast reported on Thursday morning that the special counsel’s inquiry is entering a new phase focused on influence from Middle Eastern countries. Later that evening, The Washington Post reported that final sentencing for some of Mueller’s cooperating witnesses could indicate his investigation is nearing the end. Some have even speculated that the lack of charges against the Trump campaign itself may mean he hasn’t found anything worth charging.

“Investigators certainly know more than they’re saying—they often repeat as much in court appearances and documents in their various cases,” NPR’s Philip Ewing wrote on Saturday. “But an ostensible conspiracy between Trump’s campaign and the Russians who attacked the election is nowhere near close to being proven.” I’ve argued previously that what’s publicly available so far points toward soft collusion at a minimum: a mutually acknowledged confluence of interests between Trump and Moscow. At the same time, federal investigators have yet to formally allege hard collusion—an explicit quid pro quo between the two sides.

This tension is a staple of the Russia investigation coverage. According to press reports in recent months, Mueller’s inquiry has been at once expanding and narrowing, gaining steam and losing momentum, intensifying and “wrapping up.” Mueller himself has kept virtually silent about where his investigation is headed next or what form its conclusion will take, making him the most mysterious man in Washington. Unless he’s prematurely ousted by the president, the American people won’t find out what the special counsel is truly up to until it’s all over.

This mystery may be by design, or merely the result of Mueller’s sharpest tactical decisions: spinning off parts of his investigation to multiple U.S. attorneys’ offices up and down the Eastern Seaboard. Indeed, it’s no longer accurate to sum up the president’s legal troubles under the banner of “the Russia investigation.” The bulk of the federal investigatory firepower aimed at his inner circle is now coming from outside Mueller’s control, widening the risk to the president himself.

“Investigations now entangle Donald Trump’s White House, campaign, transition, inauguration, charity and business,” the Associated Pressreportedon Sunday. Or, as thePost put it a day earlier, “nearly every organization he has led in the past decade is under investigation.”

There are plenty of advantages to Mueller’s approach. For starters, it keeps his investigation focused on its primary objective: Russian interference in the 2016 presidential election and whether the Trump campaign cooperated with it. The special counsel’s office is believed to employ 15 or so prosecutors—human beings who ultimately can only work so many hours per day. Every hour spent on Michael Cohen’s taxi-medallion foibles or Michael Flynn’s Turkish lobbying arrangements is an hour unspent on Paul Manafort’s ties to Kremlin-adjacent Russian oligarchs or the president’s efforts to obstruct justice.

History shows why it’s wise to keep a White House investigation lean and focused. Throughout the 1990s, independent counsel Ken Starr probed every nook and cranny of the Clinton White House. His team investigated so many different purported scandals without resolution, such as the dubious allegations that White House adviser Vince Foster’s suicide had been a murder, that the American public rightly saw Starr as a partisan political actor. That perception contributed to Bill Clinton’s acquittal by the Senate in 1999 after the House impeached him for the Monica Lewinsky scandal.

Mueller’s distribution of investigations to other federal prosecutors has had a multiplying effect on Trump’s legal peril. The U.S. attorney’s office for the Southern District of New York, which is based in Manhattan, may now pose a greater short-term threat to the president than Mueller does. Their investigation into Cohen’s business dealings also found evidence of campaign-finance violations allegedly committed at Trump’s behest. For all the Sturm und Drang surrounding the special counsel, ordinary federal prosecutors in New York were the first to formally connect the president to criminal activity.

It may only get worse for Trump from there. Rudy Giuliani, Trump’s current personal lawyer, has said over the past year that he’s focusing on defeating potential impeachment charges because he thinks Mueller won’t indict a sitting president. “[The strategy] is for public opinion, because eventually the decision here is going to be impeach [or] not impeach,” he said in May. As I noted last week, however, the greater risk for Trump is a federal indictment if he loses reelection in 2020. (There’s already considerable debate about whether he can be indicted while in office, but that question becomes moot the moment he’s no longer president.) This would render Giuliani’s media-centric approach somewhat useless. He and many conservative media outlets spent the year baselessly tarring the special counsel as a rogue, unaccountable prosecutor leading a witch hunt at Democrats’ behest. That may persuade Republican senators not to remove Trump from office if he’s impeached, but it’ll do little good against jurors in New York or Washington.

Other U.S. attorneys’ offices are reportedly getting involved, too. On Friday, The New York Times reported that Manhattan federal prosecutors had teamed up with their counterparts in the Brooklyn office to probe the Trump inaugural committee’s mysterious finances. The president raised more than $100 million for his inauguration, much of which came from major corporations and prominent political donors. Of interest to federal investigators is whether Middle Eastern countries with interests in Trump’s foreign policy illegally donated to the fund through American intermediaries.

There are signs that Mueller parceled out portions of this investigation to the federal prosecutor’s office in D.C. as well. The first public indication that investigators were looking into the inaugural committee’s finances came in August, when American lobbyist Sam Patten pleaded guilty to multiple charges related to helping a Ukrainian oligarch illegally buy inauguration tickets. The inquiry could ultimately lead investigators further into Trump’s business empire: ProPublica reported that an uncertain amount of the committee’s money went straight into the Trump Organization’s hotel in D.C.

Cohen’s plea deal in August, followed by his three-year prison sentence earlier this month, shows how Mueller can still extract cooperation from witnesses in the satellite investigations. And with multiple U.S. attorney’s offices involved, Trump would face a much greater challenge in halting the Russia investigation or any of its spin-off inquiries. When former FBI Director James Comey testified before the House Oversight Committee earlier this month, a lawmaker asked him what impact Mueller’s dismissal would have on the current investigations. “As an informed outsider, I think that [you’d] almost have to fire everyone in the FBI and the Justice Department to derail the relevant investigations,” he replied, “but I don’t know exactly what the effect would be.”

Was all of this a conscious tactical decision on Mueller’s part? It’s possible that he spun off ancillary avenues of the investigation to avoid Starr’s fate, or to insulate the investigations from disruption if the president fires him. He may have done so for logistical reasons—perhaps he realized his staff couldn’t pursue it all—or to hew to his narrow prosecutorial mandate from the Justice Department. Whatever his intent, the effect has been deeply damaging to Trump’s political standing and legal fortunes, and it’s trending in the wrong direction for the president.